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Name: People v. McCullough
Case #: S192513
Court: CA Supreme Court
District CalSup
Opinion Date: 04/22/2013

A defendant who fails to challenge a booking fee at the time it is imposed may not contest it on appeal. Appellant pled guilty to being a felon in possession of a gun and admitted a prior prison term enhancement. When he was sentenced the trial court ordered appellant to pay a $270.17 jail booking fee (Gov. Code, §§ 29550, 29550.1, & 29550.2, subd. (a)). On appeal he claimed the trial court erred in failing to find he had an ability to pay the fee and there was insufficient evidence to support such a finding. Held: Affirmed. Section 29550.2, subdivision (a) provides for imposition of a jail booking fee if the person has the ability to pay. Generally, parties may contest the sufficiency of the evidence for the first time on appeal because they have objected to the legal sufficiency of the evidence by “contesting it at trial.” However, the decision whether to order a booking fee is not a legal question, but rests in part on factual determinations. The prosecution must prove ability to pay by a preponderance of the evidence. A defendant who does nothing to contest his ability to pay when the fee is imposed may not raise the issue on appeal.